Occupational Health and Safety Act charges could
proceed against an insolvent company even though it had obtained
protection from its creditors under the Companies'
Creditors Arrangement Act ("CCAA"), an Ontario judge
Terrace Bay Pulp Inc. was charged with offences under the
Ontario Occupational Health and Safety Act in
relation to two separate incidents, one in which a worker was
injured in the company's wood-handling department, and one
in which a worker died after an explosion blew part of the roof off
of a mill.
Relying on certain sections of the CCAA, the court decided
that the Ministry of Labour prosecution under the Occupational
Health and Safety Act was "regulatory or prosecutorial in
nature", and the Ministry was not "acting as a
creditor" with respect to the prosecution, even though the
company could be fined if it were ultimately found guilty of the
charges. As such, the prosecution could proceed.
In response to the company's argument that it would be
costly to defend the charges, the judge noted that it was Terrace
Bay's decision as to whether it would incur the cost of
defending the charges or not.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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